This blog supplements my April 10, 2017 Minnesota Lawyer article, Board Forbids Lawyer Self-Defense in Public Forum. The blog also incorporates the substance of my October 13, 2106 Minnesota Lawyer article, Lawyers Board Opinion 24: Some Questions. My April 10, 2017 article is copied below. Opinion 24 and Rule 1.6(b)(8) (which Op. 24 interprets) are quoted in an Office of Lawyers Professional Responsibility article (“OLPR article”) on Op. 24, found at http://lprb.mncourts.gov/articles/Articles/Client%20confidentiality%20and%20client%20criticisms.pdf
“Controversy Clause” As with the other articles cited above, the focus here will be on the “controversy clause” of Rule 1.6(b)(8). The controversy clause provides that a lawyer may disclose client information as necessary “to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, . . .”
Summary of OLPR’s and Opinion 24’s Positions The positions of OLPR and Op. 24 on the controversy clause include the following:
- 24 categorically opines that the controversy clause of Rule 1.6(b)(8) never permits disclosure to rebut client accusations in any public forum, other than a legal proceeding. Op. 24 was issued without following the regular Lawyers Board procedures of (a) first publishing a draft opinion for public comment; and (b) appending an official, explanatory comment to the opinion.
- The OLPR article acknowledges that Board opinions may, under Supreme Court precedent, state only the “plain meaning” of a rule. However, the OLPR article states the opposite of “plain meaning” as governing Op. 24: “The term ‘controversy’ is not so clearly limited so as to plainly preclude the conclusion that a posting critical of a lawyer is not included in its definition.”
- OLPR distinguishes “controversy” from legal “proceeding.” OLPR states, “It seems evident that comments regarding a lawyer posted on the internet or another public forum should not be considered a ‘proceeding’.” As a synonym for “controversy,” OLPR uses “debate,” which likewise implies a public forum other than a legal proceeding. For OLPR, the terms “controversy” and “proceeding” (used in separate clauses of Rule 1.6(b)(8)) appear not to overlap.
- Citing Black’s Law Dictionary, OLPR takes the position that, to qualify as a “controversy,” the debate must be “public” and must have “substantial ramifications” for third parties.
- Focusing on a client critique of a lawyer’s performance that is posted on the internet, OLPR states that it “seems unlikely to have substantial ramifications for persons other than the lawyer and the poster of the comment.” By OLPR’s criteria, the plain meaning of “controversy” extends only to controversies that (1) are public, and (2) have ramifications for others, and (3) are not unlikely. Put differently, according to OLPR, for Rule 1.6 purposes, there cannot be a private controversy, nor a controversy that does not affect third parties, nor a controversy that is unlikely.
- OLPR claims “this interpretation is consistent with other jurisdictions that have opined on the matter.”
Summary of OLPR’s and Op. 24’s Omissions The OLPR article and Op. 24 omit the follow material considerations. Because Op. 24 does not have the explanatory comment that is customary with Board opinions, its omissions are numerous.
Neither OLPR nor Op. 24:
- Attempts to interpret or apply the special Minnesota permission to disclose client information in “an actual or potential controversy.” 24 cannot very well state the “plain meaning” of a rule when it does not even try to interpret and apply the crucial language of the rule. OLPR and Op. 24 do not describe any scenario in which the controversy clause actually applies. Indeed, Op. 24 precludes any such scenario.
- Considers public debates other than apparently petty client critiques. To give OLPR’s definitions their due, clients and attorneys must be capable, like all other people, of having controversies, in the sense of public debates with ramifications. Under OLPR’s definitions, if a client foments a public controversy with an attorney, by accusation of misconduct, then Rule 1.6(b)(8) would permit – although OLPR apparently does not recognize the consequence of its own reasoning -- the attorney disclosures needed for self-defense. Whether such client/attorney controversies are “unlikely” is irrelevant to whether disclosures are permitted when purportedly unlikely events occur. In contrast to OLPR’s position, Op. 24 categorically prohibits disclosure in “any public forum,” even when a controversy arises.
- Explains why Minnesota should follow other jurisdiction when they do not have Minnesota’s rule and when Op. 24 does not have the foundational assumptions (e.g. that the client has not disclosed confidential information) that the other jurisdictions’ opinions have.
For OLPR, the only forum in which disclosures are permitted by the controversy clause is a public forum. For Op. 24, however, disclosure of client information is never permitted in any “public forum” (other than in litigation) for a lawyer’s self-defense.
Further explication of some of these points is found below. First, however, additional, important issues are considered.
Suing the Ex-Client for Defamation Per Se, Then Disclosing Assume that a lawyer in one of the scenarios files suit, online, against a former client, alleging defamation per se. The complaint attaches, as an exhibit, an exculpatory document involving client information. These actions are clearly permitted to “establish a claim.” May the lawyer inform third parties of the filing, where needed to correct the false statements made by the client about the lawyer?
In a disciplinary proceeding, OLPR charged a lawyer with violation of the confidentiality rules for disclosing his client’s criminal record. However, a Supreme Court referee found that, because the record was found in a public court file, the lawyer did not violate the rules. OLPR did not appeal that finding. Findings of Fact, Conclusions of Law, and Memorandum of Honorable John C. Lindstrom at 19. In re Fuller, 621 N.W.2d 460 (May 23, 2000). Notwithstanding its decision not to appeal, and the advent of online court filings, does OLPR still regard disclosures of court records as in violation of the confidentiality rules? OLPR does not say, in its article or elsewhere.
The OLPR article cites the Restatement of the Law Governing Lawyers as authoritative regarding confidentiality. The Restatement regards information in public repositories as “generally known if the particular information is obtainable through publicly available indexes and similar methods of access.” Restatement § 59 cmt. d. Information is not “generally known” if it is accessible only “by means of special knowledge or substantial difficulty or expense.” Restatement of the Law Governing Lawyers § 59 cmt. d. Id. Does OLPR follow these Restatement positions, or does OLPR follow only those Restatement positions that suit OLPR’s own views?
Did OLPR consider that Op. 24 may incentivize lawyers to sue former clients, so as to defend themselves? It is unknown, because Op. 24 did not follow the Board’s own custom of supplementing its opinions with official comments.
Might Other Rules Permit Disclosure? Opinion 24 interprets only the “controversy clause” of Rule 1.6(b)(8). Op. 24 leaves open the possibility that in certain factual situations, other provisions of Rule 1.6(b)(8), or Rule 1.6(b), or other Rules might permit disclosure.
Rule 1.6(b)(8) permits a lawyer to disclose for self-defense (or to establish a claim) in a legal “proceeding.” The “proceedings” clauses of Rule 1.6(b)(8) permit disclosures to “establish a defense in a. . .proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.” The “proceeding” clauses do not apply, however, when there is a mere accusation by the client and disclosure-to-defend by the lawyer.
The broadest disclosure permission under Rule 1.6 is 1.6(b)(2). Rule 1.6(b)(2) allows disclosure where “the information is not protected by attorney-client privilege. . ., the client has not requested that the information be held inviolate, and the lawyer reasonably believes the disclosure would not be embarrassing or likely detrimental to the client.” However, it appears that this provision will not apply when a lawyer publicly refutes a client’s serious accusation. A disclosure that reveals the client is not telling the truth in making a serious allegation appears to be “embarrassing” to most clients. On the other hand, a disclosure that countered a trivial critique might or might not be embarrassing, depending on the person. The positions of the Board and OLPR on this point are unknown. In any event, even when the disclosure would not be embarrassing or detrimental, Rule 1.6(b)(2) does not permit disclosure if, as in the scenarios I have posited, the client requests, “that the information be held inviolate.”
No rule other than the controversy clause permits disclosure in the three scenarios I have posited. In short, one must look to the controversy clause for disclosure permission for defending against most client accusations of wrongful conduct against a lawyer, not made in a legal proceeding.
Other Jurisdictions OLPR states, “This interpretation [that of Op. 24] is consistent with other jurisdictions that have opined on the matter. . ..” Consistency exists, however, only in the limited sense of reaching the same conclusion. The other jurisdictions differ materially in rules, constructions of rules, histories of rules, and in factual assumptions on which the opinions are based.
Not one of the foreign authorities on which OLPR relies has a rule like Minnesota’s, which permits disclosure in a “potential controversy.” As explained in my April 10 article, the MSBA and the Board chose this term and recommended it to the Court as an important variation from the Model Rule. OLPR argues that its “interpretation is consistent with other jurisdictions that have opined on the matter.” But these jurisdictions do not have Minnesota’s rule. And OLPR’s interpretation does not include any interpretation of Minnesota’s unique permission to disclose in “an actual or potential controversy.” No argument can be made for consistent results when the opinions begin from different premises.
OLPR’s foreign authorities are based on assumptions that are not found in Op. 24, or in OLPR’s article, or in Scenarios One and Two. Three of the opinions OLPR cites expressly assume that, in contrast to the three scenarios, the ex-client has not disclosed confidential information or waived the privilege.[i] In contrast, Op. 24 and OLPR say nothing about the effect of client disclosure or waiver. Unlike the foreign opinions, Op. 24 forbids disclosure even when the ex-client has disclosed confidential information. Op. 24 and these authorities are inconsistent.
The remaining three opinions on which OLPR relies openly conflict with OLPR’s own position. These opinions construe “controversy” to require a legal “proceeding.” [ii] In direct contrast, OLPR recognizes that “public controversy” refers to, “issues that are debated publicly and that have substantial ramifications. . ..” Because a “debate” does not require a “proceeding,” the opinions on which OLPR relies are at odds with OLPR’s position.
“Controversy,” “Proceeding,” and Kidwell
As noted above, OLPR’s position is that a “controversy” is not a legal “proceeding.” This is generally true, but it should also be noted that “controversy” can also sometimes include a “proceeding.”
Four justices of the Minnesota Supreme Court (three in dissent, one concurring with the majority) interpreted the controversy clause to include a proceeding. Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn. 2010). The three other justices in the majority did not find it necessary to interpret Rule 1.6. Kidwell, a former in-house counsel of Sybaritic, sued Sybaritic, on a whistleblower claim, for wrongful termination. Kidwell’s suit disclosed a great deal of confidential information that was embarrassing and detrimental to Sybaritic. The four justices regarded Kidwell’s disclosures made in a whistleblower action as permitted by Rule 1.6(b)(8). Because these four justices did not constitute a majority, Kidwell is not precedential. However, because four justices took this position, the position should be heeded.
An actual legal proceeding is not a prerequisite to Rule 1.6(b)(8) disclosures. A lawyer may disclose confidential information to a third party who, in threatening litigation, claims complicity of lawyer and client. Rule 1.6 cmt. 8. The comment construes the key words “defense” and “established” to be operative in responding to an “assertion” made prior to litigation. Id.
The disputes in Scenarios 1 and 2 (in my April article below) and in Scenario 3 (below) are actual controversies. The disputes are also potential proceedings. The lawyers in these scenarios may bring claims against former clients for defamation per se. When controversies boil over into proceedings, they are both controversies and proceedings.
It is evident that a lawyer may “establish a claim or defense” outside of a legal proceeding. This interpretation takes account of the term “proceeding” being used twice in Rule 1.6(b)(8), in apparent distinction from “controversy.” If “controversy” meant only a “proceeding,” there would be redundancy is permitting disclosure for defense both in a “controversy” and in a “proceeding.”
Are Private Disclosures Permitted? Scenario 3
Opinion 24 expressly applies to communications in a public forum. According to OLPR, speaking in defense of Op. 24, the controversy clause applies only in a public forum. Assuming that OLPR speaks for the Lawyers Board, consider the following scenario.
SCENARIO 3. From 1980 to 2013, Liam Bard represented Roy Lear regarding business and estate planning matters.
- Lear turned 75 and started becoming increasingly disputatious. Lear asked Bard to draft Lear’s estate plan. Lear’s instructions included that the plan provided that Lear’s daughter, Ronnie, would come to control Lear’s business. Ronnie would receive the great majority of Lear’s estate. Lear told Bard he was angry with his other daughter, Delia, for not coming home for Christmas. Bard’s estate plan excludes Delia. Because Bard believed that Lear was making a serious mistake, he wrote to Lear, stating his opinion that Ronnie and Delia were equally capable of running the business and strongly advising that Lear treat Ronnie and Delia equally. When Lear received the letter, he discharged Bard as his lawyer, informed Bard that he could not reveal any client information, and retained a new lawyer to draft the estate plan.
- After a whirlwind romance, Delia married Bard’s son, Francis. Lear’s memory is diminishing, but not to the extent required for a conservatorship.
- Lear writes an angry letter to Delia, disclosing the estate plan. The letter states, falsely, that Bard advised Lear that Delia could not be trusted to run a business, because Delia was disloyal to Lear and lazy as well. The letter also states, falsely and in very specific terms, that Bard had misappropriated funds from Lear and Lear’s estate should sue Bard. Delia shows Lear’s letter to Bard and asks Bard if Lear’s allegations are true.
Disclosures Permitted? May Bard disclose to Delia that Lear’s allegations are false? May Bard show Delia the 2013 letter that Bard wrote to Lear? May Bard disclose other facts and file documents to rebut the dishonesty allegations?
Analysis. Under Minnesota’s traditional rule, Bard could respond to Lear’s false accusation of wrongful conduct by making disclosures as necessary. Likewise, under the controversy clause the straightforward approach to Scenario 3 is to conclude that Rule 1.6(b)(8) permits disclosure where necessary for defense in “an actual or potential controversy,” and Bard’s situation involves such a controversy.
Because Op. 24 declares its conclusion without providing the reasoning that is customary with Board opinions, the Board’s opinion on Scenario 3 is not entirely certain. However, Op. 24 advises that Rule 1.6(b)(8) does not permit any disclosure – public or even to one person – in responding to negative allegations. Alternatively, if Op. 24 would somehow be read to allow private disclosures while banning public disclosures, a basis for the distinction could not be found in the “plain meaning” of Rule 1.6(b)(8), which does not distinguish between private and public controversies or disclosures.
It appears from OLPR’s article that OLPR would also deny disclosure permission to Bard, because the controversy does not meet OLPR’s definition of public-with-ramifications for third persons.
Bard could make the dispute and his exculpatory documents public, by filing a suit (online) against Lear for defamation per se and by exhibiting the documents. Bard is reluctant to file suit, because Lear is in a diminished state, and the suit would make both Lear’s allegations and an embarrassing family matter public. Even if Bard filed suit against Lear, but the suit escaped notice outside the courthouse, OLPR would likely opine that Bard still could not disclose the exculpatory letter to Delia. In a Supreme Court disciplinary matter, OLPR charged a lawyer with violating Rule 1.6, by disclosing information from a court file.[iii]
Revising Op. 24 to a Reasonable Limitation on Disclosure As my October 13 article states, Op. 24 would be reasonable if it applied only to the kind of petty criticism that is common in clients’ internet postings. It could be said that disclosure of confidential information, especially information that was detrimental or embarrassing would not be “necessary.” However, Op. 24 prohibits lawyer self-defense disclosures in “any public forum,” no matter how public and how great the ramifications for the lawyer and for third parties. OLPR’s analysis, although intended to support Op. 24, recognizes that substantial public controversies fit within the controversy clause. OLPR avoids the logical outcome of its own reasoning, by claiming that such controversies are “unlikely,” and by implying that unlikely controversies are somehow not within the controversy clause.
OLPR should go back to the beginning, revise Opinion 24 to fit reasonable limits, add an explanatory comment, put a draft out for public comment, and carefully consider the comments made.
ATTACHMENTS: William J. Wernz, Board Forbids Lawyer Self-Defense in Public Forum, MINN. LAW. (Apr. 10, 2017).
[i] Thus, “This Opinion assumes that no confidential information is disclosed in the message and Former Client’s conduct does not constitute a waiver of confidentiality or the attorney-client privilege.” L.A. Bar Op. 525. Similarly, “This Opinion assumes the former client’s posting does not disclose any confidential information and does not constitute a waiver of confidentiality or the attorney-client privilege.” San Francisco Bar Op. 2014-1. Likewise, N.Y.S.B.A. Op. 1032 assumes the client’s posting “did not refer to any particular communications with the law firm or any other confidential information.”
[ii] Pennsylvania relies for this conclusion on a comment that has no Minnesota counterpart. “Comment [14] makes clear that a lawyer’s disclosure of confidential information to ‘establish a claim or defense’ only arises in the context of a . . . proceeding.” Pa. Op. 2014-200. Texas construes the “controversy” exception to confidentiality to apply “only in connection with formal actions, proceedings or charges.” Texas Op. 662.